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Tuesday, May 12, 2015

Putting the Wells Report in Proper Perspective

When Bob Kravitz, Mike Wilbon and other reporters called for the NFL to heavily punish New England Patriots Coach Bill Belichick based on unsubstantiated accusations about the Patriots deflating footballs prior to the 2015 AFC Championship Game, I criticized them for reckless reporting. I stand by what I wrote; it is wrong to call for someone to be fired based on a mere accusation and it is even more wrong to do so when that person is subsequently completely exonerated. The NFL's investigation of this matter, known as the Wells Report, has been publicly released. The Wells Report explicitly states that neither Belichick nor the Patriots organization had anything to do with deflating footballs. Kravitz, Wilbon and the rest of the reporters who engaged in reckless speculation and accusation owe Belichick and the Patriots a public apology.

After months of investigation of the matter, here is the conclusion reached by the Wells Report: "...it is more probable than not that Jim McNally (the Officials Locker Room attendant for the Patriots) and John Jastremski
(an equipment assistant for the Patriots) participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee. Based on the evidence, it also is our view that it is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate
activities of McNally and Jastremski involving the release of air from Patriots game balls."

Put more simply, there is no evidence that anyone from the Patriots actually deflated the footballs but it is possible--given the time frame involved and where the footballs were prior to the game--that enough time existed for the footballs to be intentionally deflated. If the footballs were intentionally deflated, this was most likely done by McNally and Jasremski. Based on the fact that McNally and Jastremski referred to Brady in text messages and that Brady called Jastremski after this became a major news story, it is "more probable than not" that Brady "was at least generally aware" of footballs being intentionally deflated.

From a purely legal standpoint, it is true that in criminal trials defendants are convicted based on circumstantial evidence all the time. The idea that you cannot be convicted on circumstantial evidence is a common misunderstanding of people who do not have legal training. However, the circumstantial evidence in the Wells Report--which was not prepared for a criminal trial or using the standards required for a criminal trial--is flimsy even regarding McNally and Jastremski and is almost nonexistent regarding Brady.

The NFL's response to this flimsy evidence is to suspend Tom Brady for four games, fine the Patriots $1,000,000 and deprive the Patriots of two draft picks. The Patriots have already suspended McNally and Jastremski indefinitely.

Last season, the Carolina Panthers and Minnesota Vikings were caught, on a cold day, using sideline heaters to warm up footballs. That's against the rules. You can argue that it's not the same level as deflating footballs in a bathroom, but it has the same effect: something outside of the rules to make the football easier to grip and catch. The Panthers and Vikings were...warned. That's it...Also, in 2012 the San Diego Chargers used towels with an adhesive substance on their game balls and didn't give them up to the NFL immediately when ordered to do so. If you think the Panthers-Vikings thing was just some honest mistake, it's a lot harder to convince anyone that there was no intent by the Chargers to gain an advantage. And the Chargers' punishment? A $20,000 fine. That's it.

What about the Patriots' supposed "failure to cooperate" with the investigation? The authors/investigators of the Wells Report did not have subpoena
power nor did they have the power to receive any testimony under oath. No one was under any obligation to say anything to the authors/investigators and--legally--no one can assume that someone is guilty because he fails to say something. As far as I know, the Fifth Amendment right against self-incrimination still applies to the NFL and its employees. Nevertheless, Schwab documents that the Patriots did cooperate:

They turned over text message records of employees, security tapes, secured interviews with dozens of their employees. "The failure to cooperate" is the NFL's pandering at its worst. The "failure to cooperate" is this: The Patriots say McNally was made available for four interviews but the investigators were turned down when a fifth interview was requested. Brady met with investigators, answered all their questions, but refused to provide text messages and emails. That's it. That's the extent of "failure to cooperate." There are no other examples of any lack of Patriots cooperation in the report.

Brady's alleged guilt/complicity is supposedly proven because he made some phone calls to Jastremski after the deflated football issue became a public story. The Wells Report says nothing about the content of those phone calls but implies that because Brady had not called Jastremski in the preceding few months this means that Brady knew about Jastremski's (alleged) activities. Think about that tortured logic for a minute. Pretend that you are Tom Brady and you know absolutely nothing about footballs being deflated. Then, the alleged deflation of footballs by your team becomes a national news story and you are being accused of deflating the footballs. Would you not call the equipment manager and try to find out what happened? That scenario is just as plausible as the one that the Wells Report offers. In fact, look at it the other way and pretend that you are Tom Brady and you are the mastermind of the football deflation. Would you make traceable phone calls to your accomplice just days after the story broke, after not calling him for months? If you were able to set up the whole conspiracy without using a phone, would you not either lay low or else communicate in a less traceable way? If there was a conspiracy, wouldn't each party know that the best thing to do is to keep quiet? Would that message really be best delivered in a traceable phone call?

Tampering with footballs is wrong but the NFL has never seriously policed this issue, as noted above. If the NFL intends to severely punish violators it should (1) make that clear beforehand and (2) have very credible evidence before issuing severe punishments. In this case, all the Wells Report proved is that it is theoretically possible for one person to use a needle to deflate a dozen footballs in less than two minutes. The Wells Report offers no credible evidence that this actually happened, let alone that Brady was complicit in this happening.

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